State v. Patterson, 2006 Ohio 1902 (OH 4/12/2006)
| Decision Date | 12 April 2006 |
| Docket Number | No. 05CA16.,05CA16. |
| Citation | 2006 Ohio 1902 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Jesse Patterson, Defendant-Appellant. |
| Court | Ohio Supreme Court |
David H. Bodiker, State Public Defender, Charles B. Clovis and Stephen P. Hardwick, Assistant Public Defenders, Columbus, Ohio, for Appellant.
James E. Schneider, Prosecuting Attorney, and Kevin A. Rings, Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Jesse Patterson ("Appellant") appeals his conviction in the Washington County Court of Common Pleas for aggravated robbery. He contends that his conviction violates the double jeopardy clause of the United States Constitution. He argues that he justifiably believed that his plea to assault would terminate the prosecutor's ability to charge him with aggravated robbery. Appellant also contends that the trial court erred by imposing a non-minimum prison term in the absence of jury findings of the factors presented in R.C. 2929.14(B). Because we find that there was no double jeopardy violation and that there was no definite, negotiated plea agreement between Appellant and the State with regard to Appellant's misdemeanor assault charge, we affirm the judgment of the trial court in part; however, we vacate the sentence imposed by the trial court and remand the case for resentencing in accordance with the recent opinion of the Supreme Court of Ohio in State v. Foster, ___ Ohio St.3d ___, 2006-Ohio-856.
{¶2} In the early morning hours of September 6, 2004, Jared Roberts, accompanied by his girlfriend, Billie Tucker, and two friends, Phillip Hughes and Nicole Robinson, went onto the porch of Roberts' residence to smoke cigarettes. Roberts testified that they went outside to smoke in deference to his son, who was asleep in the residence and suffers from asthma. While the four sat on the porch, Appellant and Brandon Lincoln attempted to come onto the porch. Roberts testified that while he did not object to Appellant coming onto the porch, he specifically indicated to Lincoln that he was not to come onto the porch. Shortly after he stepped onto the porch, Appellant struck Roberts. Roberts testified that after that happened, "we just all started fighting." Roberts testified that both Appellant and Lincoln struck and kicked him repeatedly, on the porch of his residence, in his yard, and in the street in front of the residence.
{¶3} While Roberts and Appellant were in the yard in front of Roberts' residence, Appellant said to Roberts, "[E]mpty your pockets and I'll quit hitting you." Roberts testified that at that point, he had three dollars in his pocket, and he refused to comply with Appellant's demand. When Roberts refused, Appellant began hitting and kicking him again.
{¶4} As a result of the struggle, Roberts suffered a broken jaw and missed two weeks of work. Roberts testified that it was recommended that he have his jaw wired shut to promote healing, but he did not take this course because the costs associated with the procedure were too great.
{¶5} Appellant entered a plea of no contest to the charge of assault in violation of R.C. 2903.13(A) prior to his indictment on charges of aggravated robbery and robbery. He was sentenced for the assault charge on September 14, 2004. On October 1, 2004, an indictment was issued for Appellant on aggravated robbery and robbery charges stemming from the same incident. Appellant was arraigned on October 5, 2004, and a jury trial was conducted on February 8-10, 2005. The jury found Appellant guilty of aggravated robbery in violation of R.C. 2911.01(A)(3), and robbery in violation of R.C. 2911.02(A)(2). He was sentenced on March 16, 2005 on the aggravated robbery count to confinement for four years in the Correctional Reception Center in Orient, Ohio. Appellant now appeals his conviction, asserting three assignments of error:
{¶6} I. MR. PATTERSON'S CONVICTION VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION.
{¶7} II. THE TRIAL COURT ERRED BY CONVICTING MR. PATTERSON WHEN HE JUSTIFIABLY BELIEVED THAT HIS PLEA TO ASSAULT "WOULD TERMINATE THE INCIDENT."
{¶8} III. THE TRIAL COURT ERRED BY IMPOSING A NONM-INIMUM PRISON TERM IN THE ABSENCE OF JURY FINDINGS OF THE FACTORS SET FORTH IN R.C. 2929.14(B).
{¶9} In his first assignment of error, Appellant contends that his conviction for aggravated robbery in violation of R.C. 2911.03(A)(3) violates the double jeopardy clause of the Fifth Amendment of the United States Constitution. The double jeopardy clause prohibits successive punishment for the same offense; it states: " * * * [no] person [shall] be subject for the same offence to be twice put in jeopardy of life or limb[.]" The applicable rule under the Fifth Amendment is that
State v. Zima, 102 Ohio St.3d 61, 65, 806 N.E.2d 542, 2004-Ohio-1807 at ¶ 19, quoting State v. Best (1975), 42 Ohio St.2d 530, 330 N.E.2d 421, syllabus ¶ 3, and citing Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76 L. Ed. 306.
{¶10} Appellant initially pled no contest to assault charges in violation of R.C. 2903.13(A) on September 14, 2004. That section provides: "No person shall knowingly cause or attempt to cause physical harm to another or to another's unborn." On October 1, 2004, an indictment was issued charging Appellant with violations of R.C. 2911.01(A)(3) and 2911.02(A)(2). R.C. 2911.01(A)(3), which outlines aggravated robbery offenses, provides:
"No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [i]nflict or attempt to inflict, serious physical harm on another."
{¶11} Likewise, R.C. 2911.02(A)(2) provides:
"No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to inflict physical harm on another."
{¶12} At the jury trial, jurors were provided the following instructions with regard to the R.C. 2911.01(A)(3) aggravated robbery charge:
Tr. p. 762. The instructions added a "knowingly" requirement to the elements of R.C. 2911.01 (A)(3). Neither the State nor Appellant's attorney objected to these instructions. The instructions as presented in the transcript reflect the law the jurors were required to apply in this case to the facts presented at trial.
{¶13} A jury charge must correctly state the law applicable to the facts that the jury must decide. Depouw v. Bichette, 162 Ohio App.3d 336, 833 N.E.2d 744, 2005-Ohio-3695, at ¶ 31, citing Marshall v. Gibson (1985), 19 Ohio St.3d 10, 482 N.E.2d 583. Reversible error occurs if a jury charge is incomplete, misleading, or incorrect. Id. However, absent plain error, the failure to object to improprieties in jury instructions, as required by Crim.R. 30, is a waiver of the issue on appeal. State v. Sheppard, Stark App. No. 2004CA00361, 2005-Ohio-6065, at ¶ 38, citing State v. Underwood (1983), 3 Ohio St.3d 12, 13, 444 N.E.2d 1332.
{¶14} The doctrine of plain error is governed by Crim.R. 52(B). Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." For a reviewing court to find plain error, three conditions must exist: (1) an error in the proceedings; (2) the error must be plain, i.e., the error must be an "obvious" defect in the trial proceedings; and (3) the error must have affected "substantial right," i.e., the trial court's error must have affected the outcome of the trial. State v. Parish, Washington App. Nos. 05CA14 and 05CA15, 2005-Ohio-7109, at ¶ 18, citing State v. Noling, 98 Ohio St.3d 44, 56, 2002-Ohio-7044, 781 N.E.2d 88; State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240; State v. Sanders (2001), 92 Ohio St.3d 245, 257, 750 N.E.2d 90; State v. Hill (2001), 92 Ohio St.3d 191, 200, 749 N.E.2d 274. Additionally, the Ohio Supreme Court has stated that Crim.R. 52(B) is to be invoked "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Parish, 2005-Ohio-7109, at ¶ 18, citing State v. Landrum (1990), 53 Ohio S.3d 107, 111, 559 N.E.2d 710; State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, ¶ 3 of the syllabus. A reviewing court should consider noticing plain error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Parish, 2005-Ohio-7109, at ¶ 18, citing Barnes, 94 Ohio St.3d at 27; United States v. Olano (1993), 507 U.S. 725, 736, 113 S.Ct. 1770; United States v. Atkinson (1936), 297 U.S. 157, 160, 56 S.Ct. 391. {¶15} Applying the three prong test for plain error to the case sub judice, the first and second prongs of...
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